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Wednesday, 6 April 2011

The IPKat is grateful to Jim Roche (Athlone Institute of Technology, Ireland) for drawing his attention to an article, "After 22 years it's yes, yes, yes to Kate Bush and Molly Bloom", posted yesterday on Irishtimes.com -- and it focuses on an apparent volte-face by the estate of famously impenetrable Irish writer James Joyce. According to this piece, by Brian Boyd,

"In a move described as “remarkable” by Joycean scholars [though Joyce might have had a better word or three for it], the singer Kate Bush has said she has been given permission to use Molly Bloom’s famous soliloquy from Ulysses in a song to be released next month.

The Joyce estate ... are notoriously protective of the writer’s work and have brought numerous lawsuits against scholars and artists attempting to quote from the writer’s work.

Kate Bush, whose mother is from Co Waterford, originally approached the Joyce estate in 1989 seeking permission to use extracts from Molly Bloom’s soliloquy in a song called The Sensual World. When denied permission the singer wrote her own lyrics to the song but has spent the last 22 years trying to get the Joyce estate to change their mind.

[She said] “... when I came to work on this current project I thought I would ask for permission again and this time they said yes. The song has now been retitled Flower of the Mountain and I am delighted that I have had the chance to fulfil my original concept.” ...

Bush’s album will contain Flower Of The Mountain and sees the singer revisit two previous albums and record new versions of the songs. It will be released on May 13th.

It is believed to be the first time Joyce’s work has been used in a popular music song. Perhaps one of the reasons the estate has given permission for Bloom’s words to be used is because the copyright on Joyce’s literary work expires in 2012 [How cynical, says Merpel, I would never have entertained such a thought ...]".

The IPKat notes this development with interest. He can't help wondering whether, if James Joyce were alive today, he would put his writing talents towards (i) drafting convoluted amendments to the US Lanham Act, (ii) writing patents or (iii) constructing decisions of the OHIM Board of Appeal on the comparison of marginally similar marks for marginally similar goods. Any other suggestions?

5 comments:

Just one very minor quibble, Jeremy: Joyce's copyright expires in 2011, not 2012.

Joyce died on January 13, 1941 (so 70 years are already up, though copyright is still in force).

Under both the Copyright Term Directive and the Irish Copyright and Related Rights Act 2000, the term of 70 years is calculated from January 1 1942, but this does not mean it expires in 2012.

Under Irish law the Interpretation Act 1937 provides that the starting day is included in the calculation, so the first year of term was from 1 Jan to 31 Dec 1941, and so on. The 70th year expires on 31 Dec 2011. The same conclusion is assumed under the Berne Convention and the Copyright Term Directive (see e.g. Case C-360/00, Land Hessen v G Ricordi).

The same result is achieved in the UK although the starting date is expressed differently (the term under s. 12 "expires at the end of the period of 70 years from the end of the calendar year in which the author dies").

Incidentally, the "subtract a day from what you would intuitively expect" rule is catered for in Irish law in such important matters (for IP practitioners at least) as the calculation of priority periods: the Patents Rules prescribe a "period of 12 months, commencing on the day following the date of filing of the previous application whose priority is claimed".

@Puzzled of New Malden: I would think you are infringing if you make use of the work on 31 December, 2011. The term is counted in complete years which last from 1 January to 31 December inclusive, so the last day when copyright is in force is the 31st December, and it remains in force until midnight marking the end of the 31st.

@David Brophy: now I'm even more puzzled. If copyright is infringed on 31 December 2011 but not on 1 January 2012, surely it hasn't expired in any part of 2011 but is completely expired from the first micro-second of 2012. Or have I just failed to understand something complete obvious that everyone else can understand?

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